Pre-9/11, Americans trusted that the checks and balances built into our democratic system would protect them from on over-reaching executive branch.

Pre-9/11, we could criticize the government without being called treasonous or unpatriotic.

Pre-9/11, we could meet peacefully to discuss how to fight the policies of the government without being spied upon and labeled a credible threat to the security of the United States.

Before 9/11, we believed that a national tragedy like the 9/11 attacks would unite us and not divide us. We believed that we were a country with courage and conviction and not a country full of fear. We believed that we were a nation of principles that would guide us and unite us in times of threat. We believed in the power of the law to protect us and our way of life.

It's not 9/11 that destroyed those beliefs, that put replaced courage with fear, that made us a "might makes right" nation instead of a nation of laws. It's not 9/11 that made civil liberties expendable, that made disagreement with the government treason, that weakened our authority in the world, that exhausted our military and cost so many lives in a part of the world that had nothing to do with 9/11.

That wasn't 9/11. That was Bush. That was the Republicans. And if signing on to the Bush agenda is what it takes to qualify as having a "post-9/11 mindset", I'll stick to pre-9/11. I'll choose courage over fear, liberty over safety, law over force, and truth over expediency. I choose to continue to believe in what makes this country different - and I'll fight for it. That's my pre-9/11 mindset.

Interesting. An article in today's New York Times, Padilla Lawyers Urge Supreme Court to Block Transfer, reminds us of the original claims made by the administration against Jose Padilla. They claimed, way back when, that Padilla was conspiring to release a radioactive bomb in the US. This claim has been used time and again by the administration to justify its conduct in the war, specifically in regard to the interrogation, treatment, and classification of detainees as enemy combatants.

Padilla even makes an appearance in the infamous August 2002 DOJ memo by attorney John Woo that makes torture possible - an analysis retracted two years later - and that also concludes that the President has virtually unlimited power as Commander in Chief. It is in the section on the powers of the Commander in Chief that this excerpt appears.

The case of Jose Padilla, a.k.a. Abdullah Al Muhahir, illustrates the importance of such information [ed - info obtained from interrogations]. Padilla allegedly had journeyed to Afghanistan and Pakistan, met with senior Al Qaeda leaders, and hatched a plot to construct and detonate a radioactive dispersal device in the United States. After allegedly receiving training in wiring explosives and with a substantial amount of currency in his position (sic), Padilla attempted in May, 2002, to enter the United States to further his scheme. Interrogation of captured al Qaeda operatives allegedly allowed US intelligence and law enforcement agencies to track Padilla and detain him upon his entry to the United States.

Huh. None of this is relevant anymore, it seems. Apparently, the administration is only interested in criminally prosecuting Padilla for fighting against US troops alongside members of al Qaeda (something which he should be prosecuted for, by the way). Seems that there's no penalty for conspiring with al Qaeda leaders to set off a radioactive bomb here.

So tell me. Why doesn't this matter anymore? Is it that presenting the evidence in open court will threaten national security? Or perhaps the evidence was gained in torture sessions? Certainly the reference to this case in a memo written for the sole purpose of providing a legal justification for, oh, let's say aggressive interrogation techniques makes one wonder.

Here's hoping the Supreme Court remembers that it is an equal branch of government and that they back the appeals panel decision to block the transfer of Padilla from military to civilian court - and that they rule on the president's authority to unilaterally declare an American citizen to be an enemy combatant, and then to detain that person without charges for an indeterminate period of time.

Did you know that in October 2001, the Dept. of Justice produced a memo for the Bush administration (for Gonzalez) with the subject line, "Authority for Use of Military Force to Combat Terrorist Activities within the United States?"

Given that the memo was written by John Yoo, the same attorney that determined that Bush had the authority to unilaterally approve spying on American citizens without warrants, I suspect the memo said Bush could deploy the military here at home anytime he wanted, as long as he had a credible "fighting the terrorists" reason.

The Bush administration is enamored with the concept of broad executive
powers. More than any social issue like abortion, it is this issue that
drove their choice of nominees for the Supreme Court.

In 2001, John
Yoo's memo justifying torture basically stated that the president had
the right to break any law in the name of national security and could
not be held liable for any actions taken as Commander in Chief. No-one
stopped to mention that the stability and longevity of our democracy
rests on the checks and balances that come from three equal branches of
government. No, instead, this administration might take as it's motto
"some branches are more equal than others".

Specifically, the Yoo memo states that "the President enjoys complete discretion in the exercise of his Commander in Chief authority" (emphasis mine). A full fourth of the memo defends this position, explaining that neither Congress nor the courts can tell the President what he can and can't do as Commander in Chief. No laws can restrain him in that constitutional role. And even if an argument can be made that the law applies, the memo offered two fully developed defenses.

Of course, this is the same memo that the administration retracted just before the Gonzales hearings, with a quiet footnote that the retraction didn't apply to the analysis on Commander in Chief authority. So that analysis stands. And Bush doesn't want it challenged in court (hence the efforts to move the Padilla prosecution to criminal court). He needs friends on the Supreme Court, friends that will agree with Yoo's views on presidential supremacy. He needs friends to codify his "some branches are more equal than others" view of our government. We can't let him have them.

"I do solemnly swear (or affirm) that I will faithfully execute the
office of
President of the United States, and will to the best of my ability,
preserve, protect and defend the Constitution of the United States."

This is the oath of office that every US president has been required by the Constitution to take upon entering office. President Bush has sworn to it twice. I publish it here to remind us all that it does NOT say "preserve, protect and defend the United States". That's what Bush seems to think he swore, and he uses that as a justification to ride roughshod over our Constitutional protections. He just leaves out the phrase "the Constitution of".

So what's lost when he forgets his primary responsibility?

His obligation to respect and protect the power of Congress to make "Rules concerning Captures on Land and Water" - like every enemy combatant in Gitmo, those held in secret prisons, and those held in the US.

His obligation to "take Care that the Laws be faithfully executed". That would include the law prohibiting the government from spying on citizen's without a warrant. The laws against torture.

His obligation to ensure that "no religious Test
shall ever be required as a Qualification to any Office or public Trust under
the United States". We can debate whether or not there's a religious qualification for judicial nominees, but I doubt anyone would debate that there's a requirement for those working in his Community and Faith-Based Programs offices.

And I haven't even gotten to the bill of rights. There, we find that he's neglected the public's right to "be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures." He's forgotten that "No person... shall be ... compelled in any criminal case to be
a witness against himself, nor be deprived of life, liberty, or property, without due process of law." (By the way, that's No person not No citizen.) He's ignored Amendment VIII, which deals solely with the prohibition against cruel and unusual punishment.

Whenever I hear the president or his cohorts justify his actions because of his first priority to defend the United States, I think "no, that's not right." Because his first priority, as set out in the Constitution, is to protect the Constitution itself. That takes precedence over everything - even our lives. The founding fathers could have written an oath binding presidents to protect the United States. They didn't. As a conservative nominating "originalists" to the Supreme Court, Bush might apply the same principles and commit himself to the original intent of the founders. And defend the Constitution above all.